Constitutional showdown; A Florida judge distorted the law in striking down healthcare reform—A Commentary by Akhil Reed Amar ’84

February 6, 2011

Constitutional showdown; A Florida judge distorted the law in striking down healthcare reform—A Commentary by Akhil Reed Amar ’84

The following commentary was published in the Los Angeles Times on February 6, 2011.

Constitutional showdown; A Florida judge distorted the law in striking down healthcare reform.
By Akhil Reed Amar ’84

Earlier this week, after grading student papers from my Yale Law School class on constitutional law, I began readingfederal District Judge Roger Vinson's recent opinion declaring "Obamacare" unconstitutional. One thing was immediately clear: My students understand the Constitution better than the judge.

I strive to be apolitical in evaluating students and judges alike. Over the years, many of my favorite students have been proud conservatives, while others have been flaming liberals. The Constitution belongs to neither party.

As every first-year law student learns, lower court judges must heed Supreme Court precedents. The central issue in the Obamacare case is how much power the Constitution gives Congress, and the landmark Supreme Court opinion on this topic is the 1819 classic, McCulloch vs. Maryland.

In McCulloch, when states' rights attorneys claimed that Congress lacked authority to create a federal bank, Chief Justice John Marshall famously countered that the Constitution gives Congress implied as well as express powers. Marshall said that unelected judges should generally defer to elected members of Congress so long as a law plausibly falls within Congress' basic mission. Though the words "federal bank" nowhere appear in the Constitution's text, Marshall explained that Congress nevertheless had the power to create such a bank to facilitate national security and interstate commerce. Other words not in the Constitution include "air force," "NASA," "Social Security," "Peace Corps" and "paper money," but all these things are constitutional under the logic of McCulloch. Obamacare is no different.

In 34 years as chief justice, Marshall never struck down an act of Congress as beyond the scope of federal power. The modern Supreme Court has followed Marshall's lead. Since 1937, only two relevant cases — U.S. vs. Lopez in 1995 and U.S. vs. Morrison in 2000 — have held that federal laws transgressed the limited powers conferred on Congress by the framers.

Neither of the laws at issue in these cases plausibly fell within the Constitution's grant of congressional power to regulate "commerce among the several states" — a phrase that includesall interstate transactions, such as a national market in goods or services or a situation in which people, pollution, water or wildlife cross state lines.

By contrast, Obamacare regulates a healthcare industry that obviously spans state lines, involving billions ofdollars and millions of patients flowing from state to state. When uninsured Connecticut residents fall sick on holiday in California and get free emergency room services, California taxpayers, California hospitals and California insurance policyholders foot the bill. This is an interstate issue, and Congress has power to regulate it.

Even were it conceded that a particular piece of Obamacare regulates a wholly intrastate matter, that piece is OK so long as it is a cog within a truly interstate regulatory regime. In 2005, the court allowed Congress to criminalize private possession of homegrown marijuana plants because, even if these plants did not themselves cross state lines, a blanket prohibition was part of a legal dragnet regulating a genuinely interstate black market in drugs.

There is nothing improper in the means that Obamacare deploys. Laws may properly regulate both actions and inactions, and in any event, Obamacare does not regulate pure inaction. It regulates freeloading. Breathing is an action, and so is going to an emergency room on taxpayers' nickel when you have trouble breathing.

Nor is there anything improper about requiring people to buy or obtain a private product. In 1792, George Washington signed into law a militia act that did just that, obliging Americans to equip themselves with muskets, bayonets, cartridges, the works.

Strictly speaking, Obamacare does not mandate the purchase of insurance. It says that those who remain uninsured must pay a tax. Vinson says this mandate cannot be upheld under Congress' sweeping tax powers. Wrong again. A basic purpose of the founders was to create sweeping federal tax power, power that was emphatically reinforced by the 1913 Income Tax Amendment.

If Congress can tax me, and can use my tax dollars to buy a health insurance policy for me, why can't it tell me to get a policy myself (or pay extra taxes)? Vinson offers no cogent answer tothis basic logical point.

He also mangles American history and constitutional structure. In a clumsy wave to today's "tea party" groups, he rhetorically asks whether Americans who fought a tax on imported tea in the 1770s would have authorized Congress in the 1780s to mandate tea purchases. Huh?

Surely Congress was authorized to do the very thing that Parliament could not — tax imported tea. Congress could do so precisely because Congress, unlike Parliament (and unlike Vinson) is elected by voters who can vote the bums out if they do not like the taxes. The rallying cry of the American Revolution was not "No Taxation!" but "No Taxation Without Representation!" Congress represents voters, so it can tax voters, or impose mandates on voters, regarding tea or militia service — or insurance policies.

In the interest of full disclosure, I should note that acting Solicitor Gen. Neal Katyal, who will defend Obamacare in the appellate courts, is a former student of mine. But my views today have nothing to do with him, and everything to do with constitutional first principles.

Obamacare's opponents are free to vote for politicians who will repeal it. They should not use seats on lower courts to distort the Constitution, disregard applicable precedents and disrespect a duly elected Congress, which gave Americans in early 2010 exactly what the winning party platform promised in November 2008.

In 1857, another judge named Roger distorted the Constitution, disregarded precedent, disrespected Congress and proclaimed that the basic platform of one of America's two major political parties was unconstitutional. The case was Dred Scott vs. Sanford, involving a slave who sued for his freedom because he had lived with his master in places where Congress had banned slavery. In an opinion by Chief Justice Roger Taney, the court not only ruled against Scott, saying that even free blacks were not citizens and therefore had no right to sue; it also declared the Missouri Compromise, which had outlawed slavery in Northern territories, unconstitutional.

History has not been kind to that judge. Roger Vinson, meet Roger Taney.

Akhil Reed Amar is a professor at Yale Law School and the author of "America's Constitution: A Biography."